The credibility of the military
justice system is being undermined by the prosecution of Bradley Manning.
His abusive punishment without trial violates his due process rights,
his harsh treatment in solitary confinement violates
the prohibition against cruel and unusual punishment, and now the commander in chief
has pronounced his guilt, making a fair trial impossible.
A Bradley Manning exception to the Bill of Rights is developing as the
Obama administration seeks Manning’s punishment no matter what constitutional
protections they violate.

On Thursday, April 21, 2011,
in San Francisco, a group of Bradley Manning supporters protested the
prosecution of Manning at a Barack Obama fund-raising event. One of Manning’s
supporters was able to question the president directly afterward, and
during the conversation, Obama said on videotape that Manning was guilty.

Can you imagine if the supreme leader of Iran, Ayatollah Khamenei,
pronounced an Iranian military whistleblower “guilty” before any trial
was held? Khamenei is the commander in chief of all armed forces in
Iran, just as President Obama is the commander in chief of the U.S.
armed services. Would anyone in the United States think that a trial
before Iranian military officers that followed such a pronouncement
could be fair? The U.S. government would use the situation to make
propaganda points about the phony justice system in Iran.

President Obama’s pronouncement about Manning—“He broke the
law”—amounts to unlawful command influence, which is prohibited in
military trials because it is devastating to the military justice
system. Manning will be judged by a jury of military officers in a
military court where everyone involved follows the orders of the
commander in chief. How are these officers going to rule against their
commander in chief, especially after Manning has been tortured in
solitary confinement for almost a year? Any officer who finds Manning
“not guilty” will have no chance of advancing his or her career after
doing so.

When unlawful command influence
occurs, a heavy burden
is put on the prosecution to “prove
beyond a reasonable doubt
that: (1) the facts upon which the unlawful command influence is based
are untrue; (2) those facts do not constitute unlawful command influence;
or (3) the unlawful command influence will not affect the proceedings.”
Since President Obama
is on videotape
announcing the finding of guilt it will be impossible to prove either
of the first two points. To prove the third point will require
the court to enter into a charade where officers claim they are not
influenced by their commander in chief. In reality, the president’s announcement will influence every
officer who wants to continue to advance in his or her career.
And since Manning has already been punished severely before trial, officers
will be even less likely to find Manning not guilty because that would
raise questions about his abusive treatment.

Military case law indicates
that “pretrial
publicity itself may constitute unlawful command influence.”
When the president speaks, it results in national media attention (a Google
search for “Obama Manning guilty” produced 1.5 million stories on April 24). Of course,
the president’s statement of Manning’s guilt was not the only pretrial
publicity in Manning’s case. In addition, the brutal treatment
Manning has received during his detention has also received widespread
media attention. The combination of this
mistreatment and the president’s statements shows that the military
from the Quantico command to the commander in chief
saw Manning as guilty and wanted him punished harshly.

The White House made an inept
attempt to change the obvious meaning of the president’s statement.
Politico reports: “White House spokesman Tommy Vietor said
Obama was in fact making a general statement
that did not go specifically to the charges against Manning. ‘The president
was emphasizing that, in general, the unauthorized release of classified
information is not a lawful act,’ he said Friday night. ‘He was not
expressing a view as to the guilt or innocence of Pfc. Manning specifically.’” This
clarification is inept because Obama was quite specific in his comments,
saying, “He broke the law.”

Unlawful command influence
causes “exceptional
harm … to the fairness and public perception of military justice
when it does arise” [.pdf].
This harm is magnified in the case of Bradley Manning because of the
severe mistreatment he has received in Quantico.
This is a case where punishment in Quantico and a finding of guilt by
the commander in chief both came before trial. The sooner this
prosecution ends, the less damage will be done to the reputation
of the military justice system.

great article! you show clearly just how sick the American people have become. to tolerate this is to be reprehensible in the extreme.

JAMIE

alzurin is 100 persent right he will be foumd guilty and killed and the US citizens are as much to blam.If there was mast protest in the entire country it may be stoped.Jullian will probably ok today on the news they said if he gets charged the New York Times has to be charged and many other powerful companys so he will almost forsure never go back to jail.But the US ands the world protesting what happening to Manning would most likley at the least get him in much much less trouble.More than anyone else the US has to show the world how much manning is being punished for the truth with is one of the most imortant thins a human has to bad mosat people lie through there teeath.

Wes

For one, you need to learn how to spell, if you are any indication of an American Citizen I sincerely hope you are only 5. Second, the USMJ is more strict than the US constitution and does not protect the same right necessarily as the Constitution. This is due to the nature of combat and war, if the freedom of speech was guaranteed under the USMJ then we would lose many battles, as people would be allowed to tell what our plans are. Mr. Manning broke those rules, and he will go to trial for them, perhaps he is being treated hard but you must remember out of all those documents he could be fueling an ideological fire for the enemy. This fire could end up hurting our men and women on the ground, who are, or should have been his brothers and sisters in arms. It is sad that he would let this happen.

Wes

Sorry the USMJ should read UCMJ.

Wootie Berster

Yes, this would be true if the sitting POTUS had any credibility himself. This fellow does not. Even his own party understands he's an empty suit, a hired flack, a tin horn, parroting the ideological notions of his handlers. If anything, the military mind is apt to think "woh.. if THAT guy thinks Manning is guilty.. maybe the little bugger is innocent afterall!"

the lion

What Manning needs is in fact the NEXT Nobel Peace Prize!

He should get that for the courage he had in showing the World the War Crimes of the helicopter Pilot.

Wonder how with the way the US treated the Chinese, and thier supposed criminal receiver of a Nobel Peace Prize. they would react if placed in similar circumstance!

One can only hope and Pray!

mjbruzzese

Kevin cites relevant legal standards and analysis regarding undue command influence and makes an excellent argument for its application to Manning. Unfortunately, the Manning case is on rails toward its conclusion and all of the applicable, on point, legal arguments are nothing more than empty bromides. It makes me very sad.